Academic highlight: Young on the Roberts Court and preemption

Posted Wed, August 1st, 2012 1:40 pm by Amanda Frost

Although the Commerce Clause steals all the thunder, the Supremacy Clause plays an even more important role in maintaining the balance between federal and state power. Under the Supremacy Clause, federal law (including federal regulations) can preempt state laws that interfere or conflict with it. So it is not that surprising that preemption — often described as a technical and somewhat obscure legal concept — is now taking up a great deal of the Court’s time. The Court decided five preemption cases in the 2010 Term, and four in 2011. Arizona v. United States, one of the Court’s final decisions this Term, addressed the states’ hotly debated role in enforcing federal immigration law in an opinion that might have gotten even more attention had it not been drowned out by the health care ruling issued a few days later. Professor Ernest Young, an expert on preemption, has just published an article analyzing the Roberts Court’s preemption jurisprudence in The Supreme Court Review, in which he concludes that the “Roberts Court’s record to date strongly suggests . . . that preemption will be an important part of its doctrinal legacy.”

As Professor Young observes, “preemption cases make up the functional heart of the Court’s federalism doctrine.” Because both state and federal governments now regulate so many diverse areas of our lives – from the air we breathe to food we eat – the relationship between these sovereigns often comes down to the question whether federal law displaces or complements its state counterparts. Although Young admits this area of the law is a bit of a “muddle,” he argues that the divergent case law is due to the diverse contexts in which preemption cases arise, rather than doctrinal confusion. His article concludes with a defense of the presumption against preemption of state law, a presumption he contends is particularly important in preserving state power at a time in which Congress has broad authority to regulate matters that were once thought exclusively the province of the states. Young’s article provides both a useful analysis of the Court’s preemption jurisprudence and a guide to where the Court might be going as it continues to tackle preemption cases in the years to come.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.